ICC judges on Du30 team’s DQ bid: We’re professionals
Two International Criminal Court (ICC) judges handling the case of former President Rodrigo Duterte and whom he wants disqualified from ruling on the issue of jurisdiction have refuted claims that they are already biased, stressing they are professionals who take their judicial roles seriously.
In a three-page submission to the Plenary of Judges dated May 22, Pre-Trial Chamber (PTC) 1 Judges Reine Adelaide Alapini-Gansou and Maria del Socorro Flores Liera said they remained “fully mindful” of the provisions of the Rome Statute and the Code of Judicial Ethics and “see no grounds” for them to be excused or disqualified.
Duterte’s defense team, headed by lead counsel Nicholas Kaufman, had asked the ICC Presidency to disallow Gansou and Liera to adjudicate specifically on its challenge of the court’s jurisdiction over the Philippines.
It argued that they were both a part of the old composition of PTC 1 that in 2021 gave the go-ahead for the prosecution to initiate an investigation of the ruthless drug war killings under Duterte and to resume the suspended probe in 2023.
Duterte is currently detained at the ICC facility in The Hague, the Netherlands, pending trial for alleged crimes against humanity linked to his administration’s campaign against illegal drugs. His confirmation of charges hearing is scheduled for Sept. 23.
Competence
The three-member ICC Presidency has directed parties, namely the Office of the Prosecutor and the two judges, to give their observations or response on the defense filing.
“It is untenable to suggest that judges cannot adjudicate a matter which is legally within their competence just because they previously issued judicial decisions at different stages of the proceedings in the same situation on the basis of different arguments,” Liera and Gansou said in their submission.
“Judges are professionals capable of deciding on issues before them relying solely and exclusively on the evidence and submissions adduced in the particular case,” they added.
Kaufman, in a disqualification request on May 9, said the legal challenge on jurisdiction should not be decided by judges who had already made a “firm opinion” on the matter.
He said no new evidence could possibly swing the earlier position of Gansou and Liera to Duterte’s favor.
But the two judges maintained that the proposition of the defense is incorrect and had the potential to cause delay.
“When the [PTC], in a former composition, addressed the issue of jurisdiction in the situation in the Republic of the Philippines, it did so in accordance with its duties under the Rome Statute, within the limits of the relevant stage of the proceedings and without prejudice to any future determinations on the same issue,” Gansou and Liera noted.
In fact, the new arguments brought by the defense to the chamber were not considered before by the chamber, they said.
Impartial decision
Asserting their compliance with their judicial duties under the Rome Statute, the two judges sought the rejection by the Plenary of Judges of the defense’s request.
“In conclusion, there are no grounds to doubt our impartiality in the current case and none of the criteria established under article 41(2) of the Rome Statute are met,” they said.
The plenary in the ICC, which is made up of all the judges in the tribunal’s three divisions—appeals, trial and pretrial chambers—will decide on the jurisdiction issue.
In another request to the three-member ICC Presidency on May 12, Kaufman said the disqualification of Gansou and Liera would “ensure the autonomy and irreproachability of the judges” as both had “prior involvement in the most substantive legal question” in the murder case against Duterte.
“The recourse sought will, simultaneously, preserve Mr. Duterte’s right to objectively impartial adjudication,” he added. “This matter should not be decided in the case by judges who have formulated a firm opinion on the question of sub judice prior to hearing defense submissions.”
